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I saw an image on Facebook that claimed 31 US states allow the fathers of children conceived by rape to have visitation rights to the children.

The number of states that rapists can sue their female victims for custory and visitation rights: 31

The image linked to an alternet article that listed it in its "50 Facts About Rape". Following the link there led to an article from The Atlantic Wire that repeated the claim and attributed it to one Shauna Prewitt, who wrote an opinion for CNN based on her experience giving birth to a rapist's child. This seems to be the origin of the claim.

Searching Google for sources is nearly impossible because of the large number of people just repeating this claim.

Prewitt is a lawyer in Chicago so I don't doubt her credibility, but this claim is very extreme and I have been unable to find a list of states or even an example from statute or case law that demonstrates this.

Do 31 states in the US allow men who father children through rape to have parental rights? If possible, I'd like to know which states these are and what statute allows it.

Sklivvz
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William Grobman
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    Notably, the banner assumes wrongly that all rapists are male. – Sklivvz Nov 03 '12 at 09:36
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    It should actually read: "The number of States **where** rapist can sue", unless it means that rapists sue the States... – nico Nov 03 '12 at 12:30
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    Regarding "and what statute allows it", my assumption is that rapists have (in theory) the same parental rights as non-rapists by default, unless a statute explicitly changes the situation. – Andrew Grimm Nov 03 '12 at 13:28
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    @Sklivviz The banner does not make any such assumption about the sex of all rapists. It's just makes the true assumption that any female rape victim who conceives as a result of the rape had a male rapist. – Tacroy Nov 03 '12 at 16:45
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    @Tacroy I doubt that the laws make a difference for female victims (or that they should), so why should the banner complain about "female victims" and not "victims"? – Sklivvz Nov 03 '12 at 17:05
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    @Skilivvz That's not the point. The point is the banner isn't making the assumption that you claimed it is. It also doesn't say "where" when it also should. It's sloppy, but not the way you originally claimed it was. – Tacroy Nov 03 '12 at 17:24
  • Also, the banner isn't really relevant. I found the source of the claim. – William Grobman Nov 03 '12 at 18:44
  • @WilliamGrobman you however do make that difference explicitly in your claim... – jwenting Apr 16 '13 at 06:04
  • http://georgetownlawjournal.org/files/pdf/98-3/Prewitt.PDF This is the Georgetown law journal which I believe discusses the ways in which laws favor parental rights to rapists. – L. N. Jan 23 '13 at 11:33
  • I thought I already has an answer to this question. I seem to recall they linked to a good source but didn't summarize and I put a comment in telling people what section to read. Can a mod confirm if this had been deleted? Seems a rather elaborate misremembrance. – William Grobman Apr 12 '15 at 17:04

1 Answers1

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There is a very detailed analysis in A State-By-State Examination of the Parental Rights of Fathers Who Conceive a Child by Rape

Really there is no substitute for going through each state's law individually, because the statutory language placing limitations on parental rights in cases of rape varies greatly.

The phrasing in the title question "Do 31 states give rapist fathers visitation rights" is too vague to precisely answer. The answer is totally different depending upon whether the question is construed as "do 31 states have no way to prevent a rapist father from having visitation?", versus, "do 31 have some possibility of allowing a rapist father to have visitation?".

Only a few states seem to absolutely bar the possibility of a rapist father having visitation:

California law is:

No person shall be granted custody of, or visitation with, a child if the person has been convicted under Section 261of the Penal Code [rape or unlawful intercourse] and the child was conceived as a result of that violation.

Louisiana

In a proceeding in which visitation of a child is being sought by a parent, if the child was conceived through the commission of a felony rape, the parent who committed the felony rape shall be denied visitation rights and contact with the child.

Other states are less absolute:

Idaho

The court may grant an order terminating the relationship and may rebuttably presume that such termination of parental rights is in the best interests of the child where: (a) The parent caused the child to be conceived as a result of rape, incest, lewd conduct with a minor child under the age of sixteen (16) years, or sexual abuse of a child under the age of sixteen (16) years

South Dakota

If it is in the best interest of the child, the court may prohibit, revoke, or restrict visitation rights to a child for any person who has caused the child to be conceived as a result of rape or incest.

Going through the table in the reference, 20 states have some degree of legislation concerning restricting the custody or visitation of a rapist father (not including laws solely concerning adoption). These are:

  • California

  • Connecticut

  • Idaho

  • Iowa

  • Kansas

  • Louisiana

  • Maine

  • Michigan

  • Missouri

  • Montana

  • Nevada

  • New Jersey

  • North Carolina

  • Oklahoma

  • Oregon

  • Pennsylvania

  • South Dakota

  • Tennessee

  • Texas

  • Wisconsin

So 20 states have legislation that addresses custody and/or visitation rights (beyond adoption related legislation) in cases of rape; however, less than 20 absolutely prohibit a rapist father from having any possibility of visitation or custody.

Of the other 30 states, 18 have no specific law addressing parental rights of rapist fathers, and 12 have adoption-related legislation restricting the rights of rapist fathers.

DavePhD
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  • I don't see the justification for the last paragraph of your answer ("The number 31 (or 30) corresponds to etc.")? Instead the second paragraph of the reference you cited says, "Thirty-two states have enacted some sort of legislation to limit the parental rights of rapist-fathers." – ChrisW Apr 12 '15 at 15:14
  • If you're looking for a well-phrased notable claim, the *Atlantic* article says, "Prewitt, herself a rape survivor who gave birth to a daughter as a result of her attack, explains that 31 states have no laws that bar rapists from seeking custody or visitation rights." – ChrisW Apr 12 '15 at 15:17
  • @ChrisW many of the 32 statutes only relate to adoption – DavePhD Apr 12 '15 at 15:25
  • So where does the "31 (or 30)" number come from, in your last paragraph? Is it your own research/summary/conclusion, which you obtain by adding up the number of states which do have laws re. custody/visitation/parental rights, and subtracting that from 50? – ChrisW Apr 12 '15 at 15:29
  • @ChrisW from going through the table and counting. I'll delete that part of the answer, and count again and edit, have to take my kids to baseball now – DavePhD Apr 12 '15 at 15:36
  • Sorry for the trouble. I wanted to double-check/understand your conclusion before I voted. – ChrisW Apr 12 '15 at 16:49
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    @ChrisW your comments were good, see if it is more clear now – DavePhD Apr 12 '15 at 19:48
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    There is also the practical question of if the father will get legal aid is such a case, and if the mother will get legal aid, along with how long the father can make the court process take. – Ian Ringrose Apr 20 '16 at 12:09